Baranyai: Assisted reproduction rules in line for update

Sometimes a snippet of banter sticks with you. In freshman year, my classmates often made a game of posing hypothetical queries with ethical overtones. One future lawyer asked my friend John: “If you were a sperm donor, and a woman got pregnant and had a baby, would you still consider yourself a virgin?”

John blushed crimson and laughed along.

Sperm donation has come a long way, even if outdated paradigms of masculinity have not evolved much.

The federal government recently proposed ending the ban preventing gay and bisexual men from becoming sperm donors. New rules would allow men to donate six months after their last same-sex contact. It’s part of a host of proposed updates to regulations governing assisted reproduction (such as in-vitro fertilization and surrogacy), open to public consultations until Jan. 10.

It’s been 14 years since Canada enacted the Assisted Human Reproduction Act. Fourteen years ago, Canadian Blood Services did not accept male donors if they’d had sex with another man since 1977, even once. As HIV science progressed, the agency updated its policy. Today, male blood donors are eligible a year after their last sexual contact with another man, and the agency is consulting on reducing the deferral period to three months.

From a legal perspective, deferral periods are not discriminatory. They are based on health considerations, an Ontario Superior Court affirmed, and donating blood is a gift, not a right. The same is true of donating sperm. But from a health perspective, sperm-donor rules should not be wildly out of step with those in place for blood donors. Revisiting these restrictions is progressive and evidence-based.

While male donors make an important contribution to folks struggling with infertility, their gift is not overly taxing. Women who participate as surrogate mothers, however, are another story.

In Canada, it’s illegal to pay surrogates for their services, or reimburse them for expenses or even loss of income, except under specific circumstances. These restrictions are in place to protect marginalized women from exploitation; surrogacy should be an act of altruism, not economic desperation.

That said, the financial burdens of surrogacy can be significant, from time off work, to dependant care, to counselling. Proposed new regulations detailing eligible expenses would acknowledge this reality.

Canada’s regulatory efforts to date also reflect an effort to learn from the darker side of commercial surrogacy in the U.S.

During the winter of John’s embarrassment, all eyes were on “Baby M.” Surrogate Mary Beth Whitehead had signed and broken a $10,000 contract to gestate a baby whom, she later discovered, she wanted to keep. A judge awarded custody to the contracting couple – the baby’s biological father and his wife – but the decision was overturned on appeal.

A member of Whitehead’s legal team spoke on campus that year, explaining the surrogate was not merely a “womb for rent,” as headlines suggested; she was the baby’s biological mother. The appeal court affirmed a woman could not meaningfully consent to relinquish a child as yet unborn, and voided the contract.

Whitehead’s was a traditional surrogacy. Advances in IVF also have made it possible for “gestational surrogates” to carry an embryo with genetic material from an egg donor or the contracting couple, rather than the surrogate’s own eggs.

Surrogacy can be polarizing. But as it’s become more common, attitudes have evolved.

Some observers suggest stiff penalties for offering surrogates compensation just encourage Canadians to hire surrogates abroad. Others fear it’s a slippery slope from paying expenses, to commercial surrogacy, to buying babies outright. It’s time for Canadians to reassess whether surrogacy payments are as exploitative as we once feared.

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